State of Louisiana v. Malcolm Jarman Rhodes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-201

STATE OF LOUISIANA

VERSUS

MALCOLM JARMAN RHODES

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 12148-12
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

************

ON REHEARING

BILLY H. EZELL
JUDGE

************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy H. Ezell, and
Shannon J. Gremillion, Judges.

SENTENCE AFFIRMED.
Gremillion, J., concurs in the result.

John F. DeRosier
District Attorney - 14th JDC
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
P. O. Box 1641
Lake Charles, LA 70602-1541
(337) 491-0593
COUNSEL FOR APPELLANT:
Malcolm Jarman Rhodes

EZELL, Judge

In State v. Rhodes, 14-201 (La.App. 3 Cir. 6/4/14) (unpublished opinion)

this court chose to preclude review of the excessiveness of Defendant’s sentence of

ten years at hard labor, with five years suspended and credit for time served, for

failure to raise the issue of excessiveness of the sentence as required by La.Code

Crim.P. art. 881.1(E). A rehearing is granted in this case for the purpose of

considering the excessiveness of the sentence as Defendant did raise the

excessiveness of the sentence in his motion to reconsider sentence.

FACTS

Whereas Defendant pled guilty, the facts are as recited in support of

Defendant’s guilty plea, as follows:

If called to trial, the State would prove between the dates of
September 1, 2010 and November 30, 2010 this defendant did violate
LSA R.S. 14:80 in that he being over the age of 17 did have sexual
relations with a person under the age of 17 who is not his spouse and
where there is an age difference of greater than four years, Your
Honor, all occurring in the Parish of Calcasieu.

ASSIGNMENT OF ERROR

Defendant argues that since he was sixteen at the time he had sexual

intercourse with an eleven-year-old girl, the sentence of five years imprisonment,

with five years of supervised probation upon release, is excessive in his case.

The statute regarding felony carnal knowledge of a juvenile, in pertinent

part, provides:

D.(1) Whoever commits the crime of felony carnal knowledge
of a juvenile shall be fined not more than five thousand dollars, or
imprisoned, with or without hard labor, for not more than ten years, or
both, provided that the defendant shall not be eligible to have his
conviction set aside or his prosecution dismissed in accordance with
the provision of Code of Criminal Procedure Article 893.

La.R.S. 14:80.

2

As noted above, Defendant was sentenced to ten years at hard labor, five

years suspended, with supervised probation upon release from incarceration.

Concerning excessive sentences, in State v. Salameh, 09-1422, p. 4 (La.App. 3 Cir.

5/5/10), 38 So.3d 568, 570 (quoting State v. Barling, 00-1241, 00-1591, p. 12

(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.

2/1/02), 808 So.2d 331) (alteration in original), this court has stated:

La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or
that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d
124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067.
The relevant question is whether the trial court abused its
broad sentencing discretion, not whether another
sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied,
519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Furthermore, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846

So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, this court

noted:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative
purpose behind the punishment and a comparison of the sentences
imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766
So.2d 501. While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that sentences
must be individualized to the particular offender and to the particular
offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674
So.2d 957, 958.

3

At the sentencing hearing, the trial court reviewed the presentence

investigation report. The trial court heard statements made by family members and

a statement from Defendant and arguments by defense counsel and the State. The

trial court then stated it had reviewed the facts of the case in accordance with

La.Code Crim.P. art. 894.1. The trial court also noted that while Defendant was

technically a first time felony offender he had a simple burglary conviction and a

juvenile history which involved another sexual offense. The trial court went on to

note:

In looking at the degree of incarceration, the Court must review
aggravating and mitigating circumstances.

I do find that the conduct of the offender was such that it would
manifest deliberate cruelty. I accept the 11-year old’s recitation of the
factual circumstances. They appear to be consistent throughout her - -
the pending of these matters, and so therefore it wouldn’t appear that
it was coerced or forced in some form or faction.

....

The offender knew or should have known particularly the
vulnerability. Obviously, 11 years old, it should have been obvious to
the defendant. I find that to be aggravating.

I agree with the State also, that the offender used position or
status to facilitate. He was an older, physically dominant individual
that was allowed as an invitee into the home where the young girl was
when the interaction occurred.

Also, in reviewing the factual situation, the offender used
threats of actual violence in the commission, specifically the
statements that if anyone were told, that she would be harmed.

I find that the offense resulted in a significant permanent injury
and significant economic loss to the victim and their family.
Obviously, based on a recitation of information on the presentence
investigation, the victim has significant problems. The stress of a 12-
years old raising a child, as well as her family, being a basis for that.

....

Other aggravating circumstances that have been somewhat
mitigated today, but originally the denial, testing DNA, at that point,
which admitting it was the child, said that it was consensual, noting
again today that he accepted responsibility and recognized it was

4

wrong, but then again stating that it was consensual and she was
involved, noting that from a legal standpoint, an 11-year old cannot
give consent for sexual contact.

Reviews of the following cases support the ten-year sentence, with five

years suspended, and five years supervised probation upon release. In State v.

Fuller, 42,971 (La.App. 2 Cir. 2/13/08), 975 So.2d 812, the second circuit affirmed

the sentence even though the defendant was a first felony offender and the trial

court sentenced him to eight years at hard labor. In State v. Wyant, 42,338

(La.App. 2 Cir. 8/15/07), 962 So.2d 1165, the defendant, who was twenty-five,

pled guilty to one count of felony carnal knowledge of a juvenile, after having

alcohol induced sexual intercourse with a twelve-year-old. The defendant was

sentenced to the maximum term of ten years, with two years suspended, and five

years of active supervised probation thereafter. The defendant argued he had no

criminal history and had two small children to support. The appellate court

affirmed the sentence. In State v. Watson, 41,094 (La.App. 2 Cir. 6/28/06), 935

So.2d 333, the defendant pled guilty to one count of felony carnal knowledge of a

juvenile. The defendant was a counselor in a mental health unit of a correctional

facility and admitted to having sex with a 16 year-old in her office. She was

sentenced to four years at hard labor. In imposing the sentence, the trial court

found the defendant needed correctional treatment for the purposes of both

punishment and deterrence, despite the fact it was impressed with the defendant’s

lack of criminal history and academic credentials.

In the current case, Defendant was charged with aggravated rape. The victim

was eleven years old and birthed a child when she was twelve. She stated

Defendant threatened to kill her if she told anyone. However, he was permitted to

plead guilty to carnal knowledge of a juvenile, and the State agreed to not use the

conviction for the purpose of a habitual offender bill. Defendant thus avoided the

5

possibility of a life sentence. Where a defendant has pled guilty to an offense

which does not adequately describe his conduct or has received a significant

reduction in potential exposure to confinement through a plea bargain, the trial

court has great discretion in imposing even the maximum sentence possible for the

pled offense. State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ

denied, 96-836 (La. 9/20/96), 679 So.2d 430.

Defendant claims he never had opportunities to develop a skill or a trade

because he was diagnosed with a bipolar disorder when he was fourteen years old.

He claimed he had made a mistake and took responsibility for the offense.

However, at the sentencing hearing, claiming he had matured since the incident, he

stated:

Well, if there was a hearing - - I apologize. I mean, I apologize
because - - we was both wrong, we was both wrong. I mean, I’m
telling you - - yes, I’m taking full responsibility, but there’s a - - she -
- the girl, I mean was willing. I mean, come on, man, it just - - it
wasn’t - - right how she - - how she played the whole story thing.

We find that the trial court did not abuse its considerable discretion when it

sentenced Defendant. A ten-year sentence of imprisonment, with five years

suspended and five years of supervised probation, in the case of a sixteen-year-old

raping an eleven-year-old and threatening to harm her if she told, is not such that

would shock this court’s sense of justice.

DECREE

After a review of the record, we find Defendant’s sentence is not excessive.

Therefore, Defendant’s sentence is affirmed.

SENTENCE AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-
Courts of Appeal. Rule 2-16.3.

6